Banksia Hill Detention Centre “a tinderbox ready to ignite” lawyers warn WA Government
Please note: This story contains reference to someone who has died and contains details readers may find distressing.
Banksia Hill Detention Centre is a “tinderbox ready to ignite”, the law firm spearheading a prospective class action on behalf of current and former detainees has warned the WA Government.
In a letter delivered to Minister for Corrective Services Bill Johnston on 28 October, Levitt Robinson Solicitors warned that the children’s prison was on the brink of upheavals like those in 2013 and 2017.
The letter detailed what it described as “inhumane treatment and lack of services” in Banksia Hill.
“Detainees are… being locked in their cells for up to 8 hours a day [during the day] – with no access to services including: education, programs, or psycho-social support. Meals are served through a grille on the door and eaten alone in the cell,” it read.
“An email from a BHDC case manager to a concerned parent of one detainee, refers to ‘rolling lockdown’ and acknowledges that the ‘kids missing out on services’.”
“One detainee has recorded the number of lockdowns over the last 2 weeks: October 7th, 8th, 11th, 12th, 13th, 14th 2021, stating ‘lockdown means we can’t leave the cell, no school and meals in cell’,” the letter states.
Levitt Robinson alleged there had been “at least seven attempted suicides” over the few weeks leading up to the letter, and “countless incidents of serious self-harm”, including a child self-harming while under observation.
The firm stated that roughly two thirds of the Youth Justice Officers at Banksia Hill “are absent from work on extended stress-related leave, or have resigned, citing intolerable conditions”.
The letter notes reports by Auditors General, the Australian Law Reform Commission, the Australian Institute of Health and Welfare, and the Office of Inspector of Custodial Services Reports have put Youth Justice Services “on notice of its many failures to provide an environment that complies with both Australian and international legal standards”.
“The substance of those allegations has since been corroborated by publicly available reports and statistics from statutory bodies… [and] the 400+ ex-detainees who have provided detailed accounts of their time in BHDC,” they wrote.
Levitt Robinson warned that with the majority of detainees at Banksia Hill being “disadvantaged Indigenous children, mainly, if not most, with a disability”, the West Australian Government is “exposed to compensatory litigation for breaches of Commonwealth legislation crafted to protect against… discrimination”.
The firm advised National Indigenous Times it expects the number of individual group members in the prospective action to soon exceed 500.
Gerry Georgatos and Megan Krakouer of the National Suicide Prevention & Trauma Recovery Project began the process of building the class action in 2020, after doing two months of outreach work in Banksia Hill.
“100 per cent of the detainees have a story unimaginable to most Australians. They have been born into disadvantage and suffering… What galvanised that we would go forward with the class action – is that we could not stand to see the most vulnerable children go through that,” Georgatos said.
Lawyer Dana Levitt told the National Indigenous Times that former Banksia detainees and the parents of Banksia detainees with whom she has spoken gave accounts of a dire situation.
“There have been many incidents where kids are left to self-harm in their cells, in one case even told “to do what they’ve got to do”. Injuries… are given no attention, medical or otherwise. The permanent medical staff at BHDC seems limited to two nurses,” she said.
“Kids kept at Intensive Support Unit for prolonged periods return covered in wounds and scratches, disassociated, or drugged out… There are worse places than ISU, like the aptly named ‘Cage’, which is made of metal wire and open to the elements.”
“The treatment these kids are receiving amounts to torture and offends against every ‘best interest principle’, not to mention the objectives of the Young Offenders Act, as it applies to the use of youth detention ‘as a last resort’.
“Children are placed in ISU… OICS [Office of the Inspector of Custodial Services] called it ‘counter-therapeutic and totally at odds with the trauma informed model of care’. And yet, what is being done? Nothing.”
Levitt said that to pass time while in lockdown the children have “four TV channels, a toilet and a bed”.
“You can imagine how deleterious this is for all children, but particularly the 9 out of 10 children in BHDC with cognitive impairment or mental disorder,” she said.
“If these children were disadvantaged before they got to BHDC, they leave worse off.”
Tessa (not her real name) lives in the Kimberley region. Her 15-year-old son is currently in Banksia Hill for the second time.
“This time has been worse than the last. There are 15-hour lockdowns, no school,” she told the National Indigenous Times.
“When he was in the first time he had school every day, he had a routine… Now they have no school, no educators coming to see them. They would be lucky to go to school once a fortnight, or to get let out for recreation, basketball once a fortnight.”
According to the Office of the Inspector of Custodial Services 2020 report Banksia Hill detainees “had an average of only 9–10 out of cell hours” per day – leaving a balance of 14-15 hours per day in their cells, in 2020.
The Department of Justice did not provide data for 2021.
Tessa’s son recently self-harmed. In the interest of the responsible reporting of self-harm, the National Indigenous Times will not publish details, but can report that it involved significant injuries.
“They put him straight into the isolation unit. They see a doctor but they don’t see a psychologist or psychiatrist until their usual appointment, which is once a week… While in ISU you are not allowed to make phone calls, there’s constant monitoring. He told me… they do nothing all day.
“Whenever I ask them what’s going on, they say ‘we don’t have enough staff’.”
Tessa said there have been “many attempted suicides and self-harm incidents… it is through the roof”.
Her eldest children live in Perth and try to visit their brother every week.
“The majority of the boys are from the Pilbara and the Kimberley; they have no family contact. You have to jump through hoops to do a video call, and the majority of these families are so remote, it’s really hard,” she said.
“My son has self-harmed four times in there. After the third time, they didn’t notify me. They apologised and said it was because of staffing.”
Aunty Carol Roe, whose granddaughter Ms Dhu was killed in custody by neglect in 2014, has had two grandsons in Banksia Hill and said the prison is “getting worse”.
“If your kids go to jail you don’t know if they are going to walk out. I am frightened by it… Kids get killed in prison and the police get promoted. They kill a black person and they get promoted. It’s a terrible thing to say, but it happens.”
Roe said one of the first things that must be done is raising the age of criminal responsibility.
“Stop locking up 10 year-old children, that is the biggest priority. They go to jail, they get molested, even get killed… Kids go out and make mistakes, and some people can’t handle their children – but they should not be going to jail,” she said.
A spokesperson for the Department of Justice provided data on self-harm and attempted suicide from the periods July 2018-June 2019 with July 2019-June 2020.
The data showed a decrease in instances of minor self-harm incidents from 145 to 113, an increase in serious self-harm from zero to one case, and a drop from two attempted suicides to one. No data was made available for the second half of 2020 or for 2021 to date.
The spokesperson said detainees “are usually provided education on every weekday during school terms and this term has been no exception”.
They said the Department “provides a range of rehabilitation and support services for detainees” and former detainees, adding that “health, rehabilitative, recreational, cultural and educational programs” are delivered by staff and externally contracted providers.
The spokesperson said Banksia Hill “also provides Aboriginal Welfare Officers to provide onsite support, advocacy and family connection”, and that “young people held in the ISU have access to the same services provided other young people at Banksia Hill”.
Georgatos said the testimonies from detainees and former detainees “are harrowing, they are staggering”.
“Each story is individual but there are significant intersections that make it very hard for any court to dispute… I have worked with children living below the poverty line all my life and I have never seen more vulnerable children than those I’ve seen in juvenile detention.”
Georgatos noted that while most jurisdictions in Australia have multiple juvenile detention centres, Western Australia has one – meaning children from all over the state serve time there.
“70 per cent of them will go on to adult incarceration later in their lives, consuming most of their 20s and 30s. This is a huge failure.”
Data from 2020 confirms that 73.6 per cent of juveniles detained in Western Australia were Indigenous, compared to 48 per cent on average nationwide.
More broadly, Western Australia has the highest number of Indigenous people in prison per capita of any jurisdiction in the country.
Data from 2020 also shows that while on average Indigenous children in Australia are 17 times more likely to be in detention than non-Indigenous children, in Western Australia they are 34 times more likely to be in detention.
Tessa told the National Indigenous Times that the situation in Banksia Hill is “worse than in adult prisons”.
“They need to have more staff. And the boys haven’t even been sentenced; every single child in there from the Kimberley are on remand. They need to be sentenced and sent home. They are off Country, they have no cultural connection, no one visiting them – nothing down there,” she said.
“The last time I talked to my son he said there are boys trying to kill themselves every day in there because they are isolated and have no connections.”
The cost of doing business
For many residents in the quiet township of Pearcedale, the local shops are the heart of the community.
On this weekday, the complex an hour’s drive south-east of Melbourne is beating strong.
Shoppers exchange cheerios across the car park and small talk about the impending rain as they bustle, car keys in hand, between the 13 shops.
Just down the road is the well-to-do bayside of the Mornington Peninsula, with its white beaches and luxury cars.
But Pearcedale is more working-class — situated at the very edge of Melbourne, close to Western Port, where small semi-rural holdings meet the mangroves.
Residents still refer to it as a country town.
Pearcedale is an hour’s drive from Melbourne. ABC News: Michael Barnett
Pearcedale is down the road from the Mornington Peninsula. ABC News: Michael Barnett
Locals didn’t bat an eyelid when the owners of United Petroleum and two of Australia’s richest men — Avi Silver and Eddie Hirsch — bought the shops in 2015, under a company called Jasman Pty Ltd.
But now, they are concerned that transaction may cost them the heart of their town.
Three of the shops will close their doors for good today, with fears more will follow, after Hirsch and Silver hiked the rent substantially on some tenants.
The other businesses are still under existing lease agreements, protecting them from dramatic rent changes.
But many in the community fear when their leases run out, they too may have no choice but to leave.
“It’s just outrageous … [I’m] really worried about what this is going to do to the community,” long-term resident Janice Welker says with anger.
“It’s just a hub for the community. You take away that hub, and it just falls apart.”
‘I couldn’t believe what they were asking’
Adrian and Liz Scialpi have run the hardware shop here for 21 years, building up a loyal customer base including farmers and boat builders.
Dozens of certificates of appreciation have been stuck on the wall above the entrance, thanking them for their donations to organisations such as the local school, CFA and pony club.
“I used to call on this little shop as a [sales] rep back in the late 90s,” Adrian remembers.
“When it came up for sale … I went home, and I said to Liz, ‘Do you want to buy a hardware store?’, and you know, her jaw hit the ground,” he laughs.
“What we did is we actually fell in love with this place, we fell in love with Pearcedale, we fell in love with the people and lifestyle of Pearcedale, and it’s just become our life now.”
The shop was their retirement plan. They hoped to rebrand it and work towards selling it, believing they could get a few hundred thousand dollars.
But they say things began to look shaky when their lease lapsed in 2019, and the owners wouldn’t sign a new agreement with them.
They were on a month-by-month arrangement, when in May this year their property agent emailed them a new leasing agreement.
“[I was in] disbelief. I couldn’t believe what they were asking,” Adrian says.
The landowners were tripling the rent — from $29,687 a year to $88,638 a year.
“So for my little store here, which is 180 square metres, in a country town, they’re asking me for nearly $100,000, in rental, [if you include] outgoings as well. So it’s a huge jump,” Adrian says.
“It’s impossible to survive.”
A perusal of commercial rents show it’s substantially more than what other landlords are charging in nearby towns like Somerville and Hastings, where the population is double that of Pearcedale.
A similar-sized shop in Hastings, in a prize spot next to the local Kmart, was just rented for $68,540 a year.
It’s even cheaper to rent a similar-sized shop in one of Melbourne’s most desirable suburbs, with one retail spot currently available in Brighton for $55,000 a year.
“The little shopping strip here services purely just our local residents, so we have no passing traffic at all,” Adrian says.
“There’s a limited market of 3,000 people that live in town, and the rate of $500 per square metre, which is what they’re asking, is almost double the market value.”
The Scialpis admit they were on a good deal previously, and say they were willing to pay more.
They sought legal advice, and put in a counter proposal to increase the rent by 50 per cent, but it was rejected by the owners.
Moving isn’t an option, according to Adrian. The closest shopping centre in Somerville 10 minutes away already has a hardware store, while the next closest shops in Tooradin don’t have a property big enough.
The Scialpis will close the doors today for the final time, with losses they estimate at more than $300,000. Both Liz and Adrian will need to find other jobs.
“We’re going to have to walk away with nothing,” says Adrian.
“It’s just devastating. I mean, we put our heart and soul into this place … to walk away under these circumstances, it’s pretty hard to take.”
‘We have to cut our losses and get out’
The Pearcedale Family Butcher is another business closing today.
The milk bar is going as well.
Sisters Julie, Cathy, and Leanne Morgan bought it as a general store 14 years ago, when it was still renting out videos and DVDs.
The movies are gone, but the lollies have stayed, as well as the ice creams, general goods and hot food in the bain-marie.
The after-school rush is the busiest time, with deals on drinks and chips offered during “happy hour”.
“We wanted the lolly stand to be a bit like the old-fashioned one where you go along and say ‘I’ll have some of them and some of them’,” explains Cathy.
“That’s what we grew up with as kids at our local milk bar and we wanted that feel for this place.”
Business has been up and down, and COVID hit particularly hard — especially when schoolkids and tradies stopped coming by.
They say they asked for rent relief over the phone, but were refused — despite the Victorian government instructing landlords to reduce the rent to help struggling tenants.
“There were zero concessions,” Cathy says.
A spokesperson for Jasman Pty Ltd said there was no record of a request being made for rent relief and “no tenant who requested rent assistance pursuant to the Commercial Tenancy Relief Scheme was denied assistance”.
Regardless, the sisters say they paid all their rent owing.
They received an email in March, saying their rent would increase by 50 per cent, from $39,000 per year to $59,400 for their 120-square-metre shop
They made a counter offer of a 20 per cent increase, but it was rejected.
Cathy says there’s no way they could run a business paying that rent. They’re now left paying off the loan they took out to buy the business, without being able to sell.
“We have to cut our losses and get out, so it’s absolutely devastating.”
Cathy bristles when she’s told Eddie Hirsch and Avi Silver are estimated to be in the top 25 wealthiest people in Australia.
“Surely you can look after the little people during the tough times,” she says.
“You know, it’s unbelievable, isn’t it, that they have so much money, but they can’t support us during COVID … and post-COVID.”
Landlords have ‘every right’ to negotiate rent
Eddie Hirsch and Avi Silver are worth a combined $3.6 billion, according to The Australian newspaper’s 2021 rich list.
They made their fortune through United Petroleum, starting the company with a group of service stations in 1993, and slowly expanding to include hundreds of servos as well as fuel import terminals.
United is currently involved in a legal battle with several of its former service station franchisees, who say their agreements were unfairly terminated by the company.
They allege they’ve lost hundreds of thousands of dollars because of United’s treatment.
While Hirsch and Silver own the Pearcedale shops through their company Jasman Pty Ltd, they rent the shops out through United Petroleum.
Without commenting on this specific case, property barrister Robert Hay QC says once a commercial lease ends, the landlord can charge whatever they want.
“In the end, they’re in the same position really as if they were negotiating for a brand new lease — that is a lease where the tenant hasn’t already been in possession,” Mr Hay says.
In a statement, a spokesperson for Jasman Pty Ltd said it was seeking new leases in line with the rental market.
“As the rental the tenants enjoyed for [a] number of years was well below market rental rates, the tenants have decided to not take up new leases and leave the shopping centre,” the spokesperson said.
“Jasman has honoured a small number of historical leases with below-market rents for some years. Jasman has every right to negotiate market rentals with its tenants as new leases are negotiated.”
But Alexi Boyd, from the Council of Small Business Organisations Australia, says the increases are unreasonable.
“I think it’s really disappointing to see a large company like this take advantage of a situation for small businesses where things are really difficult, we’re trying to get back up on our feet again, and then they get hit and slugged with this enormous rent increase,” Ms Boyd says.
“It doesn’t just impact this small business person, it impacts all of their workers, their community.
“Often these shops are really an integral part of a small business community and part of the community as a whole.”
Several valuers the ABC spoke to said the owners would struggle to get new tenants in, while it would be tough for those who decided to stay to keep afloat.
The increases bucked the general trend of rents in and around Melbourne, which were flatlining as retail rental vacancies rose due to the pandemic.
“If the rent is that high no-one else is going to come in there as well,” one said.
‘It’s too late for us’
If Jasman Pty Ltd has a grand plan for the site, it’s unclear what it is.
One of the shops in the complex is a BP petrol station, which the departing shop keepers suspect will be turned into a United outlet once the current lease is up.
But it’s seeking long-term tenants in the now vacant shops, and has signed on other shops in the complex for multiple years.
The local council owns the car park, which carves out the centre of the complex, and says it has no plans to sell it.
Some real estate agents the ABC spoke to believed the company probably genuinely thought it could get someone to pay the increased price.
Others said it may be in their interest to have the shops empty but ask for a higher rent, because it made the price of the asset appear higher.
“Who knows,” says Alexi Boyd.
“It’s very difficult to know what is going through the minds of these big businesses when they make decisions like this.
“But the impact is stark.”
Whatever the reason, many locals in Pearcedale, including outgoing shop owner Cathy Morgan, fear the decision is the beginning of the end for the heart of their town.
“It’s too late for us … we can’t go on any further,” she says.
“But it’d be nice for the big people to give the little people a go, you know?
“Look after the small businesses that are left, because it means such so much to the local communities.”